Mercy Hospital of Buffalo sought review of the National Labor Relations Board's decision and order finding it guilty of unfair labor practices, and the Board cross-petitioned for enforcement of its order. The case is remanded for further proceedings consistent with this opinion.
Before Feinberg, Chief Judge, Friendly and Pierce, Circuit Judges.*fn*
Mercy Hospital of Buffalo (the Hospital) petitions this court to review and set aside an order of the National Labor Relations Board (the Board) dated March 19, 1981 that found that the Hospital had unlawfully refused to bargain with the Buffalo and Western New York Hospital and Nursing Home Council (the Union). The Board has filed a cross-application for enforcement of its order, which was entered upon the General Counsel's motion for summary judgment. We find that the grant of summary judgment was improper, and accordingly we remand for further proceedings.
In November 1979, the Union filed a representation petition with the Board seeking certification as the exclusive collective bargaining representative of the Hospital's full and part time business office clerical employees. The parties agreed to a consent election, which was held in late December 1979. The election produced 33 votes for the Union, 32 votes against the Union, and a single challenged ballot cast by Sister Mary Blanche that obviously could have affected the outcome of the election. The basis of the Union's challenge to the ballot was that Sister Mary Blanche was a member of the Religious Sisters of Mercy (the Order), a religious order that allegedly controlled the Hospital. No party filed objections to the election.
After conducting an investigation of the challenged ballot, the Board's Regional Director issued a report on February 1, 1980, recommending that the Board sustain the challenge to the ballot, and that the Union be certified. The Hospital filed timely exceptions to the Director's report and recommendations. The Board rejected these exceptions and issued a Decision and Certification of Representative in July 1980 that adopted the Director's findings and recommendations and certified the Union.
Thereafter, the Union asked the Hospital to bargain with it, but the Hospital refused in order to obtain further review of the validity of the Union's certification. The Union filed a charge, and the Regional Director issued a complaint alleging that the Hospital's refusal to recognize the Union violated sections 8(a)(1) and (5) of the National Labor Relations Act, 29 U.S.C. §§ 158(a)(1), (5). The Hospital defended its refusal to bargain on the ground that the certification was invalid because the challenge to Sister Mary Blanche's ballot was improperly upheld. The Board's General Counsel filed a motion for summary judgment, asserting that the Hospital's defense was merely an attempt to relitigate matters already resolved in the representation proceeding. In November 1980, the Board issued an order transferring the case to itself and giving the Hospital two weeks to respond to the General Counsel's motion. The Hospital responded by renewing its claim that the certification was invalid.
In March 1981, the Board issued its decision and order granting the General Counsel's motion for summary judgment. The Board concluded that the Hospital was attempting to relitigate issues already disposed of in the representation case. Accordingly, the Board found that the Hospital had violated sections 8(a)(1) and (5) of the Act by refusing to bargain with the Union. The Board required the Hospital to cease and desist from this unfair labor practice, to avoid infringing its employees' rights in any like or related manner, to bargain with the Union upon request, and to post appropriate notices. This petition for review and cross-application for enforcement followed.
The source of controversy in this proceeding is the successful challenge to the ballot of Sister Mary Blanche. In its July 1980 decision certifying the Union, the Board had pointed out that:
(H)ere not only do the Employer's bylaws require that a majority of the board of trustees be members of the Religious Sisters of Mercy, but also the Hospital administrator is a member of both the Order and the board of trustees.
In view of the fact that the Order not only has majority control of the board of trustees, but further controls the day-to-day operation of the hospital, we find that the Order administers the Employer. We therefore further find that Sister Mary Blanche as a member of the Order is, in a sense, part of the Employer and that her relationship with the Employer is fundamentally different from that of the employees in the bargaining unit. Accordingly, we adopt the Regional Director's recommendation that the challenge to her ballot be sustained. (Footnote omitted).
In this court, the Hospital attacks the Board's finding that the Order controls the Hospital and the Board's sustaining of the challenge to Sister Mary Blanche's ballot on the ground that she "is, in a sense, part of the Employer" and "her relationship with the Employer is fundamentally different from that of the employees in the bargaining unit."
The evidence before the Board was contained in affidavits, which showed the following: The Hospital is a New York corporation. It holds title to the land and buildings and is a legal entity distinct from the Order, which is the Hospital's sponsoring organization. Under the Hospital's by-laws, members of the Order must constitute a majority of the Hospital's board of trustees. That board currently has 17 members; nine are members of the Order and eight are lay persons. Twenty-three of the Hospital's 1,500 employees are members of the Order. Some members of the Order live in convents, one of which ...